Patullo v Grays Sawmills Pty Ltd - [1994] QCA 218

IN THE COURT OF APPEAL	[1994] QCA 218
SUPREME COURT OF QUEENSLAND

Appeal No. 226 of 1993

Before

Fitzgerald P.
Davies JA.
Pincus JA.

[Grays Sawmills Pty. Ltd. v. Suncorp]

BETWEEN:

WARREN THOMAS PATULLO

Plaintiff

AND:

GRAYS SAWMILLS PTY. LTD.
First Defendant/First Respondent

AND:

FREDERICK JOHN REINKE
Second Defendant/Second Respondent

AND:

THE NOMINAL DEFENDANT (QUEENSLAND)

Third Defendant/Third Respondent

AND:

SUNCORP INSURANCE AND FINANCE

Third Party/Appellant

REASONS FOR JUDGMENT - THE PRESIDENT

Judgment delivered 17/06/94

The circumstances giving rise to this appeal are set out in the judgment of Davies J.A.

The facts appear complicated and the judgment from which the appeal is brought has surprising consequences. The appellant was the insurer of a registered motor-vehicle, the semi-trailer, which was owned and controlled by the injured plaintiff who was not in any way negligent. The appellant had no connection with the other, unregistered, vehicle, the forklift, or with the negligent parties, the first and second defendants. Yet it is required to indemnify them in respect of their liability to the plaintiff and the Nominal Defendant (Queensland), consequent upon their and its liability to the plaintiff. Such a curious result requires careful consideration.

Yet I am satisfied that it is correct, subject to one possible qualification. As Davies JA. points out, although it has since been amended, at the material time subsection 3(1) of the Motor Vehicles Insurance Act, 1936 as amended, effectively provided for the licensed insurer of a motor vehicle to indemnify not only the owner but "all other persons" against all sums for which any such person should become legally liable by way of damages in respect of the insured vehicle. I agree with Davies J.A. that the liability of the defendants to the plaintiff or the Nominal Defendant is "by way of damages" within the meaning of the Act. The question is whether the defendants' liability is "in respect of" the plaintiff's semi-trailer.

As the cases demonstrate, that is a question upon which conflicting views may be, and often are, rationally held: see, e.g.. Technical Products Pty. Ltd. v. State Government Insurance Office (Queensland) (1989) 167 CLR 44. I have found it helpful on this occasion to consider a somewhat simplified version of the facts.

Suppose that there were no forklift involved, and the second defendant, an employee of the first defendant, was involved in manually loading the plaintiff's semi-trailer by placing timber upon it. Suppose further that the second defendant was negligent in performing that activity and the plaintiff was thereby injured. In my opinion, there would be a sufficient link between the negligence and the semi- trailer to satisfy the test prescribed in Technical Products.

On the other issues, I agree with Davies JA. and have
nothing to add. I also agree with the orders which his
Honour proposes.
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 226 of 1993.

Brisbane

[Patullo v. Grays Sawmills Pty Ltd]

Before	Fitzgerald P. Pincus J.A. Davies J.A.
BETWEEN:

WARREN THOMAS PATULLO
(Plaintiff)

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Patullo v Grays Sawmills Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1994] QCA 218
Decision Date: 17/06/1994

CaseChat Overview and Summary

The case of Patullo v Grays Sawmills Pty Ltd involved an appeal by Suncorp Insurance and Finance, the appellant, against the decision of the trial judge in the Supreme Court of Queensland. The plaintiff, Warren Thomas Patullo, had been injured while loading timber onto his semi-trailer at a railway station. The forklift used to load the timber was owned and operated by Grays Sawmills Pty Ltd, the first defendant, and driven by Frederick John Reinke, the second defendant, an employee of the first defendant. The plaintiff sought damages for his injuries, which he claimed were caused by the negligent mismanagement of the forklift by the second defendant.

The trial judge held that the first and second defendants were liable for the plaintiff's injuries and that the appellant, as the insurer of the semi-trailer, was required to indemnify the first and second defendants for their liability to the plaintiff. The Nominal Defendant (Queensland) was also sued in respect of the forklift and was held to be entitled to be indemnified by the first and second defendants. The appellant appealed on two grounds: (1) that the trial judge was wrong in finding that the liability of the first and second defendants was a liability in respect of the semi-trailer, and (2) that even if the appellant was liable to indemnify the first and second defendants in respect of the semi-trailer, the trial judge should have apportioned liability between the appellant and the Nominal Defendant.

The Court of Appeal, consisting of Fitzgerald P., Davies JA, and Pincus JA, dismissed the appeal with costs. The court found that there was a sufficient link between the negligent act of the second defendant and the semi-trailer to satisfy the test prescribed in Technical Products Pty Ltd v. State Government Insurance Office (Queensland). The court also found that the liabilities of the Nominal Defendant and the appellant were not coordinate, and therefore there was no basis for apportionment between them. The appeal was dismissed, and the orders of the trial judge were upheld.

Orders